Dirk Vincent Van Heck v Giambrone & Partners Studio Legale Associato
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 12 May 2022 |
| Neutral Citation | [2022] EWHC 1098 (QB) |
| Docket Number | Appeal no: QA-2020-000190 |
| Court | Queen's Bench Division |
[2022] EWHC 1098 (QB)
Mr Justice Soole
Appeal no: QA-2020-000190
Case no. F53YJ009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
On appeal from the Central London Civil Justice Centre
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Cheryl Reid for the Appellant/Defendant
The Respondent/Claimant in person
Hearing date: 9 March 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an appeal by the Defendant Italian based law firm against the Order of HH Judge Parfitt (‘the Judge’) dated 17 June 2020 whereby he dismissed its application to stay this action by the Claimant barrister on the grounds of lis alibi pendens pursuant to Article 29 of EU Regulation 1215/2012 (Brussels 1 Recast; ‘the Regulation’).
The substantive dispute concerns the barrister's claim for professional fees. The jurisdictional dispute concerns the priority between this action for his fees (‘the London Claim’) and the law firm's prior and mirror action in Palermo which seeks a declaration of non-liability in respect of the barrister's claim (‘the Palermo Claim’).
The first instance court in Palermo has made an order declining jurisdiction but an appeal (or purported appeal) to the court of appeal in Palermo has been lodged and is yet to be determined. In the light of the evidence of a single joint expert in Italian law (‘the JSE’), the Judge held that the issue of jurisdiction in the Palermo Claim had been finally determined by the first instance decision; and that in consequence there was no lis alibi pendens. The application for a stay of the London Claim was therefore refused. The law firm contends that these conclusions were wrong in law and fact.
Article 29
The Article provides, as material: ‘1. Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different member states, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established…3. Where jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.’
There is no dispute on the following matters and principles. First, that the court first seised of the dispute was Palermo; and that the proceedings in the two jurisdictions involve the same cause of action and are between the same parties.
Secondly, that the concept of lis alibi pendens in Article 29 of the Regulation (and its like predecessors and successors in similar instruments) has an independent and autonomous meaning under Community law: Gubisch Maschinenfabrik KG v Palumbo (144/86) EU:C:1987:528; [1989] E.C.C. 420; The Alexandros T [2013] UKSC 70; also Recital (21) of the Regulation.
Thirdly, that the underlying rationale of Article 29 is the avoidance of irreconcilable or inconsistent judgments: see again Recital (21); Gubisch: also The Alexandros T: ‘…the purpose of Article 27 [here, 29] is to prevent the courts of two Member States from giving inconsistent judgments and to preclude, so far as is possible, the non-recognition of a judgment on the ground that it is irreconcilable with a judgment given by the court of another Member State…’: per Lord Clarke at [27].
Fourthly, that the Regulation (including Article 29) relies on ‘mechanical tests’, not subject to overriding considerations of ‘merits’: Research in Motion UK Ltd v. Visto Corporation [2008] 2 All ER (Comm) 560 at [35], further cited in Easygroup Ltd v. Easy Rent a Car Ltd [2019] EWCA Civ 477; [2019] 1 WLR 4630 at [74].
There is a dispute between the parties as to whether the time limit under Italian law for appealing the first instance decision in the Palermo Claim is 30 days or 6 months. In the light of the evidence of the JSE, the Judge concluded that the relevant time limit was 30 days; and therefore that the appeal in Palermo was lodged out of time. Although the Palermo documents in the bundle do not make this clear, this present appeal proceeds on the agreed basis that the law firm's appeal in Palermo contends that the relevant time limit was 6 months and that the appeal was therefore lodged in time.
In any event, the law firm's central contention is that, as a matter of law, there is lis alibi pendens where an appeal has been lodged in the court first seised, whether in or out of time. In this respect it contends that the Judge misinterpreted observations of the Court of Appeal in Moore v. Moore [2007] EWCA Civ 361. It will also be necessary to consider two further Court of Appeal authorities not cited to the Judge: Re M [2018] EWCA Civ 1637; and Easygroup Ltd v. Easy Rent a Car Ltd [2019] EWCA Civ 477; [2019] 1 WLR 4630.
Narrative
The relevant factual background can be largely taken from the concise summary within the Judgment. The law firm engaged the barrister to provide legal services. The barrister claims outstanding fees for his legal services between 2016 and 2018. The law firm denies liability.
On 22 January 2019 the law firm issued the Palermo Claim, seeking a declaration of non-liability. On 18 April 2019 the barrister issued this London Claim.
On 5 September 2019, the Palermo first instance court made a ruling which declined jurisdiction in the matter. On 1 November 2019 the law firm filed an acknowledgement of service in the London Claim, stating an intention to contest jurisdiction. On 12 November 2019 a further hearing in Palermo dealt with some typographical errors in the 5 September 2019 ruling.
On 15 November 2019 the law firm issued the subject application for a stay of the London Claim ‘pending final determination of the proceedings before the court of Palermo’ (emphasis in the original), in reliance on Article 29.
On 16 December 2019 the Palermo first instance court issued a certificate of res judicata in relation to the Order of 5 September 2019. That certificate is not in the appeal bundle, but the JSE final Report says that it stated (citing a provision of the Italian Civil Procedure Code on time limits) that ‘…the ruling was final because it was not appealed within the terms provided by the law’ (para.4(f)). The Report added: ‘Although it is known that the certificate does not form full evidence of the res judicata, it is also true that the clerk, before certifying that, has to carry out formal verifications and is subject to truth obligation’ (para. 7).
On 4 March 2020 the law firm filed an appeal from the 5 September 2019 first instance decision in Palermo. The appeal was given a case number (No.391/2020) and a first hearing was fixed for 25 September 2020, i.e. postdating the hearing before the Judge in the London Claim (5 June 2020) and his subsequent Judgment handed down on 17 June 2020.
The JSE
The JSE, Avv. Damiano Peruzza, was asked to consider two questions relating to the Palermo Claim, namely as to (i) time limits for appeal and (ii) finality. These were: (i) ‘Which time limit applies to appealing the decision of the Palermo Court dated 5 September 2019’; and (ii) ‘As a matter of Italian law and procedure, if such an appeal has not been filed within the time limit, is it regarded as final?’.
In both his preliminary (30 April 2020) and final (14 May 2020) Report the JSE answered the two questions:
‘The decision was subject to a time limit for lodging appeal of 30 days, running from the communication of the ruling by the clerk of the Court (5 September 2019) or at the latest from the knowledge of the ruling (surely obtained by the parties in November 2019, during the correction sub- proceeding). This brief time limit is set by Art. 702-quater c.p.c. as interpreted by the Supreme Court of Cassation, which confirms that the long time limit doesn't apply to this special proceeding’;
and
‘If a ruling is not appealed within the time limit set by the law, it is considered final, in which case the late appeal will be declared inadmissible by the Court of Appeal’.
The JSE also answered a number of questions from the law firm, arising from his preliminary Report. Relevant to this appeal, his answers acknowledged that the Palermo court documents showed that the appeal was filed with a case number; assigned to an identified Judge; and the first hearing scheduled for 25 September 2020. The JSE continued: ‘The fact that the appeal proceeding was assigned to a Judge doesn't follow any preliminary evaluation by the Court of Appeal: if any appeal is filed, the Court has to decide upon it, even if it is not filed on time, in which case the Court will declare the appeal inadmissible.’
In answer to the next question ( ‘Please state if you can categorically exclude the possibility that the Court of Appeal in Palermo will accept that appeal lodged by [the law firm] was filed and served on time?’), the JSE replied: ‘After an objective exam of the Law, it is my solid opinion that the Court of Appeal will declare the appeal lodged by [the law firm] to be not served on time and thus declare it inadmissible’.
On 25 September 2020, the Palermo court of appeal adjourned the matter until 25 March 2022, i.e. postdating the appeal hearing before me. On 8 October 2020 the barrister applied to that court for the adjourned hearing to be brought forward to a date in 2021, but this was refused on the following day. This further information appears from the witness statement dated 18 January 2021 of the law firm's Italian lawyer. Permission to adduce this new evidence was granted by Martin Spencer...
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Dr Véronique Marie Elisabeth Simon v Ms Anne “Anouk” Taché
...Easygroup Ltd v Easy Rent A Car Ltd [2019] 1 WLR 4630 (CA) at [19]–[20] per David Richards LJ, and Van Heck v Giambrone & Partners [2022] EWHC 1098 (QB) at [48] et seq, per Soole J. On this basis, if a foreign court was seised first and Article 29 is otherwise applicable, the English cour......